Courts Block New USPS Mail Ballot Rule Ahead of Midterm Elections
Tampering With Elections Is Not Governance but Usurpation
When those in power reshape the rules of voting to secure their own continuance, they cease to govern by consent and begin to rule by force, however robed their measures appear.
When an executive tells voters to “pretend that I’m on the ballot,” and then his administration presses changes to the very machinery by which ballots are cast and counted, I know at once what sort of question is before us. It is not merely about post offices, computer portals, or bar codes; it is whether political power in your commonwealth is still held on trust for the people, or has begun to be turned to the private advantage of those who wield it. For the matter is plain: when rulers alter the conditions of election in the midst of an approaching contest, the suspicion arises that they would rather choose the people than be chosen by them.
In the case now reported to me, the Postal Service under executive direction unveiled a rule, late and hastily, by which mail ballots would only be delivered if states surrendered their voter rolls through an unfinished online portal and adopted new technical marks upon envelopes and bar codes. Experienced election officers from several states declared that “neither election officials across the country nor USPS are equipped” to implement this scheme for the coming midterms. A whistleblower warned that, by the contrivance of one bar code’s failure, entire batches of ten thousand ballots might be cast aside. Here the form is administrative; the substance is simple disenfranchisement.
A federal judge, considering a challenge by states and voting rights groups, blocked this new rule, finding that jurisdictions working upon a “prescribed timeframe” would be “unable to pivot this late,” and that the change would “nearly guarantee significant disenfranchisement.” A unanimous appeals panel affirmed her. The Supreme Court, I am told, has rejected these mail-ballot restrictions for the present election, though one of its justices intimated a willingness to sustain them in a future case. Another justice described a related ruling as a “Kafkaesque nightmare” that sowed, rather than quieted, pre‑election chaos. I see here a judiciary sensing the smell of arbitrary power, yet not fully resolved against it.
These proposed postal rules do not stand alone. The Court’s conservative majority has, by destroying a central part of your Voting Rights Act and approving unprecedented mid‑decade gerrymandering, already “green‑lit,” as you say, an effort to tilt elections. It is reported that new lines have been drawn to create ten more seats favourable to one faction in the House of Representatives. When those who already sit in the legislative can so model districts as to secure their friends, they make themselves, in effect, judges in their own case; they wield the power given them for the public good to assure their own continuance. As I argued in my Second Treatise, this is a plain breach of trust.
The defenders of such measures will say that some regulation of voting is necessary; that fraud must be prevented; that order requires rules, even strict ones. I grant, first, that every society may establish standing, known laws concerning elections, so long as these are framed for all and not for a party. Secondly, I grant that prerogative, that is, discretionary power to act for the public good without a pre‑existing rule, may sometimes be necessary in emergencies. But here, the facts as reported show no sudden danger from ballots requiring so extreme a response; they rather show an executive long opposed to mail voting, who yet uses it himself, seeking late‑hour rules that his own postal officers and state allies call “secretive, rushed, chaotic, and fundamentally flawed.” That is not prerogative for the public safety; it is usurpation against the public right.
By the law of nature, which is but reason, no man ought to harm another in his life, liberty, or possessions. A citizen’s vote is part of his property in the largest sense, being a share in the common power set up to secure all the rest. To so contrive the postal system that millions of ballots may never be sent, or tens of thousands rejected for a single scanning error, is to lay hands on that property. When legislators, or those who influence them, employ their authority to reduce some citizens’ effective suffrage, whether by destroying protections like your Voting Rights Act or by artful boundaries, they do what I once described—here I paraphrase myself—as putting themselves into a state of war with the people, having abandoned the rule of common law for the rule of their own will.
Yet I must add a caution I have long maintained. Not every unjust act dissolves government; not every flawed election justifies tumults in the street. The dissolution of a particular scheme of postal rules, or even of a partisan drawing of districts, is not the dissolution of society. The proper first remedies are open protest, petition, litigation before impartial courts where such may still be had, and, above all, renewed legislation by representatives chosen as freely as the existing system allows. But when there appears a long train of abuses—each tending to the same end of entrenching one faction by narrowing the electorate—then a people may justly judge that the trust is broken and set about, calmly but resolutely, to replace those who misuse it. Consent must be more than a word on paper; it must be the living rule of your politics.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — The state of nature as analytic baseline: perfect freedom and equality under the law of nature, so that government must be shown to improve on that baseline for everyone who leaves it.
- Second Treatise of Government — Dissolution of government and the right of resistance: when legislators invade property or set up arbitrary power, they rebel against the people, not the people against them.